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2022 DIGILAW 994 (GUJ)

Jai Ranchhod Gopalak Vividh Karyakari Sahkari Mandali Ltd. v. State Of Gujarat

2022-08-26

ANIRUDDHA P.MAYEE

body2022
JUDGMENT : All the present Special Civil Applications are taken up for hearing together since they all involve common question with respect to deletion of the name of the petitioner societies in the final voters’ list of the Agriculture Produce Market Committee, [“APMC” for short], Zalod. 2. Rule returnable forthwith. Ms. Nidhi Vyas, learned AGP waives service of notice of rule for the respondent State authorities and Mr. Dipen Desai, learned advocate waives service of notice of rule for the private respondents. With consent of learned advocates appearing for the parties, the matters are taken up for hearing and decision today. 3. The brief facts leading to the filing of this writ petitions are as follows:- 3.1 The petitioner societies are the Marketing Cooperative Societies which are duly registered with the competent authority and they hold licence of marketing since long. The licence of the petitioner societies has been renewed from time to time. It is alleged that the licence of the petitioner societies has been renewed from 1.4.2022 to 31.3.2023 and the same has been signed by the Secretary of the APMC, however, the Administrator has deliberately not signed the said renewal with the ulterior motive to exclude the name of the petitioner societies from the voters’ list from the election to be held to the Managing Committee of the APMC. 3.2 It is further submitted that the respondent No.2 – Director of Agricultural Marketing & Rural Finance appointed the respondent No.3 as an Election Authority and the respondent No.4 as the Authorized Officer to prepare the list of voters. That the election programme came to be published by the respondent No.2 vide his communication dated 27.5.2022 and the election programme was declared on 4.6.2022. The respondent No.4 was informed to take appropriate action for the preparation of the list of voters. The petitioner societies who are dispensing agricultural credits in the area of market proper and Zalod APMC forwarded their names to the Authorized Officer so as to enable him to prepare the list of voters. Accordingly, the required information was also submitted before 12.6.2022. That the publication of the preliminary list of voters was fixed on 17.6.2022. The objections were to be invited on or before 1.7.2022. The decision on the objections and publication of preliminary voters’ list was fixed on 6.7.2022. Accordingly, the required information was also submitted before 12.6.2022. That the publication of the preliminary list of voters was fixed on 17.6.2022. The objections were to be invited on or before 1.7.2022. The decision on the objections and publication of preliminary voters’ list was fixed on 6.7.2022. Thereafter, the objections against the 2nd publication of the preliminary list of voters was fixed on 13.7.2022 and on 16.7.2022 the final list of voters was to be published. Thereafter, the nominations were to be filed on 17.8.2022. The date of publication of the list of nominated candidate was to be displayed on 7.8.2022 and the scrutiny of the nomination so received was fixed on 18.8.2022. The withdrawal of the nomination was fixed on 21.8.2022. The publication of the final list of contesting candidates was fixed on 21.8.2022 and the voting was slated to take place on 1.9.2022. The counting of the votes was fixed on 2.9.2022. 3.3 It is further the case of the petitioner societies that as per the information sought for by the respondent No.4, the petitioner societies forwarded the names of the members of the Executive Committee of their societies. Along with the said communication, the petitioner societies also placed on record the resolution for the constitution of its Executive Committees. The petitioner societies also placed on record the trial balance of the financial years 2019-20, 2020-21 and 2021-22. It is their case that all the required information was duly provided to the respondent No.4. It is further the case of the petitioner societies that they were included in the provisional list of voters. That after the name of the petitioner societies was reflected in the provisional list of voters, however, objections came to be raised against such inclusion. Pursuant to the receipt of such objections, the respondent No.4 issued notices to the petitioner societies wherein it was alleged that the petitioners were paper societies and not functioning and acting in actual. In relation to such allegations, the respondent No.4 by his communication asked the petitioner societies to furnish the requisite documents. It is the case of the petitioner societies that they appeared before the respondent No.4 during the hearing of objections and produced all the relevant records. In relation to such allegations, the respondent No.4 by his communication asked the petitioner societies to furnish the requisite documents. It is the case of the petitioner societies that they appeared before the respondent No.4 during the hearing of objections and produced all the relevant records. That vide impugned order, the respondent No.4 ordered to delete the name of the petitioner societies from the provisional list of voters of the Marketing Cooperative Societies Constituencies holding that the petitioner societies had not paid the market cess within time and the same was paid after the declaration of the election and therefore, the petitioner societies were not qualified to be included in the list of voters. Accordingly, the names of the petitioner societies were ordered to be deleted. It is the case of the petitioner societies that the final list of voters came to be published and the names of the petitioner societies were deleted from the final list of voters. 3.4 It is, therefore, prayed that this Court may be pleased to issue an appropriate writ and quash and set aside the impugned decision of the respondent No.4 and further direct the respondent No.4 to include the name of the petitioner societies in the list of voters of the APMC, Zalod. 4. Mr. B.M.Mangukiya, learned advocate appearing for the petitioner societies in all the cases, has submitted that the petitioner societies had produced on record whatever documents were demanded by the respondent No.4 and even thereafter on the frivolous grounds as stated in the impugned order of the respondent No.4, their names came to be deleted from the final list of voters. He further submitted that the name of the petitioner societies was deleted from the final list of voters on the ground that the petitioner societies are not holding qualification in conformity with clause-(iii) of sub-section (1) of Section 11 of the Gujarat Agricultural Produce & Marketing (Promotion & Facilitation) Act, 1963. He further submitted that the name of the petitioner societies was deleted from the final list of voters on the ground that the petitioner societies are not holding qualification in conformity with clause-(iii) of sub-section (1) of Section 11 of the Gujarat Agricultural Produce & Marketing (Promotion & Facilitation) Act, 1963. It was submitted that their deletion from the voters’ list was on the ground that the petitioners had not obtained unified licence from the competent authority and as the licence of the petitioner societies has not been renewed, the petitioner societies’ name could not be included in the list of voters and therefore, was ordered to be deleted and such an action of the respondent No.4 is ex-facie illegal, arbitrary and ultra vires since the respondent No.4 has recorded selfcontradictory orders. The contradiction is evident since the name of the petitioner societies was deleted from the constituencies of traders on the ground that the cess fees remained unpaid, whereas it is also held that the petitioner societies is not holding unified licence. He further submits that the respondent No.4 has wrongfully considered the provisions of the Act in the impugned order. It is further submitted that the order passed by the respondent No.4 is on extraneous material which was never disclosed to the petitioner societies and therefore, the same is in grave violation of the principles of natural justice. It was submitted that the objections raised by the objector were supposed to be given to the petitioner societies to enable them to answer the same. No show-cause notice was issued to the petitioner societies. They were asked to produce the record which they had already provided. Thereafter, the petitioner societies were not called upon to show-cause and the petitioner societies were not heard and therefore, the impugned order of deletion is without hearing the petitioner societies and therefore, bad in law. It was submitted that the reasons recorded by the respondent No.4 in the impugned order are frivolous and intentional so as to exclude the petitioner societies from the list of voters and thereby to influence the outcome of the election to the Managing Committee of the APMC, Zalod. Therefore, it was submitted that the present writ petitions may be allowed. 5. Per contra, Mr. Therefore, it was submitted that the present writ petitions may be allowed. 5. Per contra, Mr. Dipen Desai learned advocate appearing for the private respondent/objector has supported the impugned order passed by the respondent No.4 and submitted that the same has been passed after considering the objections; calling for relevant records and thereafter, coming to the conclusion by a reasoned order and therefore, the same should not be interfered under Article 226 of the Constitution of India. It was further submitted that the petitioner societies were ineligible and had been wrongly included in the preliminary voters’ list and therefore, the objections raised by the respondents was proper and has resulted in proper adjudication of the status of the petitioner societies. It was further submitted that now the election programme was declared and the voting was to be held shortly and therefore, this Court may not interfere in the election programme and the petitioner societies have an appropriate remedy under the statute by way of election petition, if they are aggrieved by the outcome of the election. 6. Heard learned counsels for the parties and perused the documents on record. 7. This Court in catena of decisions has held that the powers under Article 226 of the Constitution of India would not be exercised by the Court when there is a remedy in filing the election petition which has to be exhausted only after the elections are over. In the present case, the voting is to be held on 1.9.2022. Section 145U of the Act read with Rule 82 of the Rules of 1982 provides for grounds for declaring the election to be void in case of improper inclusion / exclusion in the voters’ list. It is well settled that in normal course, the High Court will not interfere with the election process to interrupt, interfere or stall such process and that all election disputes arising in the middle of the elections shall be postponed for their resolution until after the elections are over, to be dealt with in accordance with the machinery provided under the relevant statute. 8. In view of the well settled legal position as enunciated by this Court, no interference is called for in the present writ petitions. This Court is of the opinion that appropriate remedy for the writ petitioners would be to pursue their grievance by way of election petition under the statute. 8. In view of the well settled legal position as enunciated by this Court, no interference is called for in the present writ petitions. This Court is of the opinion that appropriate remedy for the writ petitioners would be to pursue their grievance by way of election petition under the statute. It is made clear that this Court has not expressed any opinion on the merits of the impugned decision of the respondent No.4. The petitioners are at liberty to raise all the contentions available to them in law and such election petition if filed will be decided in accordance with law on its own merits after due consideration of the contentions raised by the parties. The present writ petitions are accordingly dismissed. Rule is discharged. No order as to costs.